Ricci-Italian Silversmiths, Inc. has appealed from the Examining Attorney's refusal to register ART DECO on the Supplemental Register for silver and silver coated flatware namely, knives, forks and spoons. [FN1] Registration has been refused on the ground that applicant's proposed mark is so highly descriptive as to be incapable of indentifying applicant's goods and distinguishing them from those of others. Trademark Act Section 23, 15 U.S.C. 1091. It is the Examining Attorney's position that ART DECO is an art term which identifies a particular style.

The Examining Attorney has made of record a dictionary definition of "art deco" as meaning "a popular decorative style of the 1920s and 1930s characterized esp. by bold outlines, streamlined and rectilinear forms, and the use of new materials (as plastic)" [FN2] and "[a] style of decoration popular during the Nineteen Twenties marked by clean line and simple geometries devoid of frill or flourish; derived from cubism and Egyptian, Aztec, Toltec and Mayan themes."% [FN3]

Applicant has submitted an excerpt from The World Book Encyclopedia, copyright 1983, which provides further information on the subject:

ART DECO was a style of design that became popular during the 1920's and 1930's. It was used chiefly in furniture, jewelry, pottery, and textiles. Most art deco designers created objects that could be mass-produced, rather than such individual works as paintings and sculptures. The term art deco comes from Exposition Internationale des Arts Decoratifs et Industriels Modernes, the title of a design exhibition held in Paris in 1925.

Art deco was characterized by geometric shapes, smooth lines, and streamlined forms. Many art deco works were made of chrome, plastics, and other industrial materials. Designers also used such expensive materials as crystal, ivory, and silver. The style featured a look of sleek elegance that was associated with wealth and sophistication.

Art deco also influenced architecture. For example, many buildings in New York City have the metal ornamentation and geometric patterns that are typical of the style. One such structure is the Chrysler Building, with its soaring tower formed by bands of stainless steel arches. In the Radio City Music Hall, curving stairways and round chandeliers also reflect the influence of art deco.

Vol. 1, pp.713-14

Excerpts from a book entitled The Art Deco Style in Household Objects, Architecture, Sculpture, Graphics, Jewelry [FN4] provides the following information:

Although Art Deco derives its name from the great 1925 Paris exhibition, "L'Exposition Internationale des Arts Decoratifs et Industriels Modernes," the term is now generally applied to the typical artistic production of the 1920's and 1930's.

*2 ...within two years the prismatic geometric style consecrated by the exhibition had found its way into every area of modern life.

...The sources of Art Deco, which included Egyptian and Mayan art, Cubism, Fauvism and Expressionism....

The chief force underlying all Art Deco is its emphasis upon geometric patterns.

My choice of plates has been governed by the desire to give not only the best possible examples of Art Deco, but also representative works by some of the outstanding exponents of the style. No book on Art Deco would be complete without the silver of Jean Puiforcat....

Art Deco is today enjoying a revival. ...graphic designers, package designers, and advertisers have found the motifs of Art Deco a valuable source of creativity. I have selected the plates in this book of designs of the 20's and 30's ...to serve as an inspiration to the designer of the 70's.

The Examining Attorney has also made of record excerpts from the NEXIS database which refer to ART DECO as a style of silverware:

Stainless steel flatware is the number one seller, especially in contemporary and Art Deco looks, such as the Ionic and Colonade patterns by Supreme.

Gifts & Decorative

Accessories

August 1984

But the flatware is the terribly elegant Georg Jensen Pyramid pattern, designed by Harold Nielsen of Art. The silver is a prime example of why art deco is sometimes called "Aztec Airways," with its plain handles ending in a pyramidal finial.

Flatware took a not-unexpected turn toward the art deco/art nouveau style with plain, sleek handles and rounded spoons and forks. Boda Nova brought out a sleek stainless line, while Wilkens featured the deco look in stainless and silverplate....

HFD--The Weekly Home

Furnishings Newspaper

April 7, 1986

In addition, the Examining Attorney has made of record articles and excerpts in which the following references are found:

Art Deco Revisited Among the more than 10,000 Andy Warhol memorabilia sold last spring for $25 million in a 10-day auction conducted by Sotheby's in New York were 39 lots of Art Deco silverware by a French silversmith named Jean Puiforcat....

...To distinguish itself from the others, Puiforcat decided to play to the current vogue for Art Deco by featuring the designs of Jean Puiforcat, the most original of the family members.

Jean Puiforcat, who died in 1945, was recognized as the master of Art Deco silver in 1925 at a time when other silversmiths were content to copy classic French patterns.

Puiforcat's designs were practical as well as stylish. ...Puiforcat also reshaped knives and spoons, coming up--in one case--with a typically Art Deco design that features a straight blade and a big bowl spoon at the end of a stocky shaft.

...Jean Puiforcat was recognized as the uncontested master of Art Deco-style silver flatware and hollowware.... Sleek and sculptural. Stylized and sensuous. Radiant aspects of the Art Deco style which evolved in Europe during the first two decades of the twentieth century.... You'll discover just how contemporary the rich Art Deco tradition can be when viewed through the eye of the eighties.

NM EDITS (Neiman Marcus,

no date indicated.)

The Examining Attorney asserts that the above-noted references establish that ART DECO identifies a style of flatware, and that the term is therefore incapable of identifying the flatware of only one party.

In response, applicant has submitted the declaration of its president, attesting that between 1982 and 1988 applicant has spent over $500,000 advertising its ART DECO flatware; that no other company uses ART DECO to describe flatware; and that the ART DECO mark has acquired secondary meaning among customers, retailers, and individuals knowledgeable in the flatware and tabletop industry. It has also submitted the affidavits of three owners of table top and home accessory stores, and the affidavit of an independent consultant on table top and home accessories, all to the effect that no other company is using ART DECO for flatware, and the mark ART DECO is recognized as referring to flatware originating from applicant.

This case is remarkably similar to In re Bauhaus Designs Canada Ltd., 12 USPQ2d 2001 (TTAB 1989), in which BAUHAUS was found to function in a generic manner to indicate a type or style of furniture. Here, too, the numerous definitions, articles and other material submitted by the Examining Attorney demonstrate that ART DECO is a term widely used to refer to a particular style of flatwear. It is not necessary, as applicant suggests, that a term must identify a specific pattern of flatwear before it can be considered generic or so highly descriptive as to be incapable of functioning as a trademark. The evidence makes it clear that the ART DECO style is characterized by certain features such as geometric shapes, smooth lines and streamlined forms, and that patterns of flatwear containing these features would be recognized as being ART DECO in style. Accordingly, even though the term ART DECO may describe various flatwear designs, this fact does not enable such a term to be exclusively appropriated by one entity. See In re Analog Devices, Inc., 6 USPQ2d 1808 (TTAB 1988), aff'd. unpub. op. App. No. 89-1029 (Fed. Cir. Mar. 23, 1989).

Applicant also argues that ART DECO has taken on a different meaning today from its original sense, and does not identify a particular style because it is now used to describe designs that would not have been called ART DECO in the 1920's. As a result, applicant asserts that today the term merely suggests a look of sleek elegance associated with the wealth and sophistication of the 1920's and 1930's.

*4 We are not persuaded by this argument. In determining whether or not a term is generic or incapable of distinguishing an applicant's goods, one must determine whether members of the relevant public primarily use or understand the term to refer to a genus of goods or services. H. Marvin Ginn Corp. v. Int'l Assn. of Fire Chiefs Inc., 782 F.2d 987, 228 USPQ 518 (Fed. Cir. 1986). Evidence of the public's understanding of the term may be obtained from any competent source, such as purchaser testimony, consumer surveys, listings in dictionaries, trade journals, newspapers, and other publications. In re Merrill Lynch, Pierce, Fenner, and Smith, Inc., 4 USPQ2d 1141 (Fed. Cir. 1987). The evidence of record, consisting of dictionary listings, trade journals, newspapers and other publications, demonstrates that ART DECO is understood by the public to indicate a style of (inter alia) flatware, and even if this term now encompasses designs which at one time might have been called, e.g., art nouveau, that is of no moment. The fact is that at the present time ART DECO is recognized as a style designation for flatware, whether created during the 1920's or today, and as such cannot be exclusively appropriated by a single entity.

As for the declaration regarding applicant's advertising expenditures and the four affidavits from retailers/independent consultant, we have carefully considered them but, as in the Bauhaus case, do not find them sufficient to rebut the prima facie showing made by the Examining Attorney that the term ART DECO indicates a particular style of flatwear.

Decision: The refusal to register is affirmed.

E. J. Seeherman

E. W. Hanak

G. D. Hohein

Members, Trademark Trial and Appeal Board

FN1. Application Serial No. 568,964, filed November 18, 1985 and asserting first use in Italy as early as 1934 and first use in

FN2. Webster's Ninth New Collegiate Dictionary.

FN3. Jewelers' dictionary, 3d ed.

FN4. Menten, Theodore, copyright 1972.

August 13, 1990

Jean Brown

Administrator

Correction

The Board's decision of July 12, 1990 is amended as follows:

On page 6, paragraph 2, substitute the word "flatware" for the word "flatwear" which appears in lines 7, 8, 13, and 15 and on page 8, paragraph 1, line 6, substitute the word "flatware" for the word "flatwear".